Excerpt:specific relief act (i of 1877), section 21 - specific performance of contract--unfair advantage to plaintiff--hardship to defendants--discretion of court. - .....that document gave the plaintiffs an unfair advantage and that the performance of it would cause undue hardship to the defendant. the lower appellate court affirmed the decision of the first court not on the ground that the contract was not entered into by the defendant with full knowledge of the circumstances, but on other grounds mentioned is the judgment. i gave the parties an opportunity of compromising the case but nothing was done. i referred certain issues to the court below by my order, dated the 3rd of may 1912. it has been found by the lower appellate court that the defendant executed the document of the 25th of january 1910 with full knowledge of its contents, but the learned subordinate judge has found that this document confers undue advantage on the plaintiffs and causes.....

Judgment:

Benerji, J.

1. This suit is in substance one for specific performance of a contract embodied in a document executed on the 25th of January 1910. The parties owned certain house property jointly. Under an award made in 1861, a portion of this property was partitioned, bat some of it still remained joint. It is said that under the contract in question, it was agreed that the property which had remained joint should be divided in the manner provided for in the document. On the basis of this agreement, the plaintiffs brought the suit out of which this appeal has arisen and claimed the reliefs set forth in the plaint. The facts of the case are fully stated in the judgment of the Munsif. He dismissed the suit on the ground that the agreement of the 25th of January 1910 was entered into by the defendant without a full knowledge of its contents and that it was not binding on him. He also came to the conclusion that the contract made in that document gave the plaintiffs an unfair advantage and that the performance of it would cause undue hardship to the defendant. The lower Appellate Court affirmed the decision of the first Court not on the ground that the contract was not entered into by the defendant with full knowledge of the circumstances, but on other grounds mentioned is the judgment. I gave the parties an opportunity of compromising the case but nothing was done. I referred certain issues to the Court below by my order, dated the 3rd of May 1912. It has been found by the lower Appellate Court that the defendant executed the document of the 25th of January 1910 with full knowledge of its contents, but the learned Subordinate Judge has found that this document confers undue advantage on the plaintiffs and causes a hardship to the defendant which was not anticipated at the time when the document was executed. These findings must be accepted in this appeal.

2. Section 22 of the Specific Relief Act provides that a Court is not bound to grant specific performance merely because it is lawful to do so, but has a discretion in the matter and Clauses (1) and (2) of the section provide that if the circumstances under which the contract is made are such as to give the plaintiffs undue advantage though there may be no fraud, and where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, the Court should exercise its discretion and refuse to grant specific relief. In view of the findings in this case, the plaintiffs gained undue advantage. Certain portions of the property which have been found to belong to the defendant would go under the deed to the plaintiffs. The closing of the door, which now exists, and the opening of another door in that portion, which is in front of the defendant's sehdari, would cause great hardship to the defendant, which he did not foresee at the time. The opening of the door at that place might lead to considerable litigation between the defendant and Musammat Ram Kali. The present case is very similar to those mentioned in some of the illustrations to Section 22, for example, illustrations (e), (h) and (j). Having regard to the findings at which the Courts below have arrived, there was unfairness and inequality in the contract and as the plaintiff would still have the right to obtain partition, those Courts were justified under the circumstances in exercising the discretion vested in them under Section 22 of the Specific Relief Act. The learned Council for the appellants referred to the case of Shib Lal v. The Collector of Bareilly 16 A. 423 : A.W.N. (1894) 161. That case has reference to its own peculiar circumstances and there is no general proposition of law laid down in it which would help the appellants. I do not think I should be justified in interfering with the discretion vested in the Courts below under Section 22, which they have exercised not arbitrarily bat on reasonable grounds. I dismiss the appeal with costs.